Whittle v. DavisWhittle v. Davis
Richard L. Hurchanik, 110 North Third Street, Hamilton, Ohio 45011, for defendants-appellants, Danielle Davis, Mohammed T. Al Barbarawi, Falcon Automobile Sales, Inc.
OPINION
HENDRICKSON, J.
{¶ 1} Defendants-appellants, Falcon Automobile Sales, Inc., Falcon Auto Sales, Inc. (collectively, “Falcon Auto Sales“), Danielle Davis, and Mohammed T. Al Barbarawi, appeal a decision of the Butler County Court of Common Pleas denying their motion to vacate default judgment in favor of plaintiff-appellee, Antonio Whittle, Jr. For the reasons discussed below, we affirm the judgment of the trial court.
{¶ 3} Appellee alleged he was told by Falcon Auto Sales that financing for the transaction had been approved and he would be able to pay off the balance owed on the BMW over a period of time. However, appellee later learned financing had never been approved for the transaction.
{¶ 4} Appellee also alleged Falcon Auto Sales agreed to accept his 2005 Lexus IS300 motor vehicle (the Lexus) as a trade-in. Appellee was given a trade-in allowance of $2,000 towards the purchase of the BMW and was told Falcon Auto Sales would pay off the $8,000 balance owed on his loan for the Lexus.
{¶ 5} Appellee further stated Barbarawi had represented that the BMW was in good mechanical condition and free from malfunctions and defects when, in reality, the BMW was defective and unfit to drive. According to appellee the BMW‘s brakes were “not effective in stopping the vehicle,” one of the BMW‘s windows “fell off track,” and noises “emanated from under the vehicle.”
{¶ 6} As a result of the BMW‘s defective conditions and the lack of financing, appellee alleged that he attempted to return the BMW to Falcon Auto Sales on August 4, 2011. Falcon Auto Sales accepted the return of the vehicle but refused to give appellee back his $2,000 trade-in value or return the Lexus, claiming the Lexus had already been sold.
{¶ 7} Appellee‘s complaint further alleged that he was forced to go without a vehicle for almost five months and had to borrow his mother‘s vehicle when it was available. Appellant claimed he suffered “significant stress and frustration” as a result of worrying about how he would get to and from work and other engagements. Appellee sought both economic and non-economic damages as a result of appellants’ actions.
{¶ 8} Appellants failed to timely respond to the complaint, and default judgment on the issue of liability only was rendered against Falcon Auto Sales on January 18, 2012 and against Davis and Barbarawi on August 2, 2012. Also on August 2, 2012, the trial court entered final judgment in favor of appellee and awarded damages to him in the amount of $20,999.60 plus court costs and interest. The damage award was based upon appellee‘s affidavit and the affidavit of appellee‘s attorney.
{¶ 9} Thereafter, on August 7, 2012, appellants filed a
I am Danielle Davis. I thought that this matter would go to trial as we have before Judge Campbell. I thought we‘d get a court date
to appear on. I did not realize we needed an attorney to file papers before a hearing would be held. This is true.
{¶ 10} Thereafter, on August 23, 2012, appellants filed an amended motion to vacate. The amended motion sought to “vacate [the court‘s] Granting Default Judgment filed on January 18, 2012, and the Final Appealable Order [entered on] August [2], 2012.” In their amended motion, appellants sought to incorporate their August 7, 2012 motion, and argued they were entitled to relief from judgment because (1) no damages hearing was held by the trial court, (2) appellee had signed an “as is” sale contract and had indicated that no oral promises had been made to him when he purchased the BMW, (3) the court lacked jurisdiction over the case pursuant to an agreement to arbitrate entered into by appellee, and (4) appellants, through “mistake, inadvertence, or excusable neglect * * * assumed that the [complaint and summons] were from Judge Campbell‘s [Municipal] Court * * *. The [appellants] were wrong and failed to notice there is a difference between Small Claims Court and the Common Pleas Court.” In support of their motion, appellants again attached Davis’ affidavit and also attached the affidavit of Barbarawi, which stated:
I am Bryan Barbarawi, aka Mohammed T. Al Barbarawi. I thought this matter would go to trial as we have before Judge Campbell. I thought we‘d get a court date to appear on. I did not realize we needed an attorney to file papers before a hearing would be held. I did not mean to be disrespectful. This is true.
Also attached to the motion was a “Retail Purchase Agreement,” which contained an “as-is” warranty statement, a “Buyer‘s Guide,” a “Delivery Confirmation,” a “We Owe” document, a “Waiver of [Warranty] Service Contract,” and an “Agreement to Arbitrate.” These documents were not attached to an affidavit and were not otherwise authenticated or certified.
{¶ 11} On August 30, 2012, before the trial court ruled on appellants’ amended motion to vacate, appellants directly appealed the trial court‘s award of $20,999.60 in damages. See Whittle v. Davis, 12th District Butler No. CA2012-08-169, 2013-Ohio-1950. Thereafter, the
{¶ 12} On May 13, 2013, this court reversed the damages award and remanded the matter so that the trial court could hold a damages hearing to determine the non-liquidated damages. Id. at ¶ 20. Four days later, on May 17, 2013, appellants filed a second amended motion to vacate, seeking to have the court “vacate its Entry Granting Default Judgment filed on January 18, 2012.” In this motion, appellants sought to incorporate their August 7, 2012, and August 23, 2012 motions to vacate, “as if rewritten.” Once again, appellants argued they were entitled to relief from judgment under
{¶ 13} On June 3, 2013, the trial court denied appellants’ motion to vacate default judgment. The trial court determined that appellants failed to set forth operative facts sufficient to establish a meritorious defense to appellee‘s claims. Thereafter, the trial court held a damages hearing and a hearing on the issue of attorney‘s fees. On July 24, 2013, the trial court entered final judgment against appellants in the amount of $20,547.91 plus court costs and interest.
{¶ 14} Appellants appeal the denial of their May 17, 2013 motion to vacate default judgment, raising two assignments of error. For ease of discussion, we will address both assignments of error together.
{¶ 15} Assignment of Error No. 1:
{¶ 16} THE TRIAL COURT IN ITS ENTRY FILED JUNE 3, 2013, ERRED BY FAILING TO GRANT [APPELLANTS‘] MOTION TO VACATE AND BY FAILING TO NOTE THAT “THE
{¶ 17} Assignment of Error No 2:
{¶ 18} THE COURT ERRED WHEN IT FAILED TO NOTE [APPELLANTS] HAD SET FORTH WITH SUFFICIENT CLARITY AND PARTICULARITY THE FACTS WHICH THEY CLAIM ENTITLES THEM TO RELIEF FROM JUDGMENT TO INCLUDE MERITORIOUS DEFENSES SET FORTH WITH CLARITY AND WITH EXHIBITS.
{¶ 19} In both their first and second assignments of error, appellants argue the trial court erred in determining that they did not set forth sufficient operative facts demonstrating meritorious defenses to appellee‘s claims. Appellants argue their August 23, 2012 amended motion to vacate, which was incorporated into their May 17, 2013 motion to vacate, set forth such operative facts and, further, the exhibits attached to the August 23, 2012 motion demonstrated that their defenses have merit. Specifically, appellants assert the “as is” clause in the purchase agreement, the “Buyer‘s Guide,” and the “Waiver of [Warranty] Service Contract” made it clear that the BMW was not under warranty. They further assert the “We Owe” document demonstrated that no oral or written promises were made beyond those set forth in the purchase agreement and the “Agreement to Arbitrate” removed plaintiff‘s complaint from the court‘s jurisdiction. Appellants contend the trial court is not precluded from relying on these exhibits even though the exhibits were not expressly mentioned or attached to the May 17, 2013 motion to vacate, as the exhibits were “incorporated” through the August 23, 2012 motion to vacate. Appellants also contend that the exhibits may be considered by the trial court even though the exhibits were not attached to or otherwise introduced by way of an affidavit.
{¶ 20} Appellee, on the other hand, maintains that the trial court properly denied the motion to vacate as appellants failed to demonstrate that they had a meritorious defense to
{¶ 21} To prevail on a
{¶ 22} With respect to the first requirement of a 60(B) motion, “[i]n order to establish a meritorious defense, a moving party ‘must present operative facts that demonstrate the existence of a meritorious defense or claim.‘” Fifth Third Bank v. Schoessler‘s Supply Room, L.L.C., 190 Ohio App.3d 1, 2010-Ohio-4074, ¶ 13 (12th Dist.), quoting Natl. City Bank v. Rini, 162 Ohio App.3d 662, 2005-Ohio-4041, ¶ 20 (11th Dist.). “If a party who seeks relief from judgment does not present operative facts or presents facts of limited or meager quality, then a trial court is justified in denying relief because that party has failed to meet its burden of asserting facts entitling the party to relief.” Bank of New York Mellon v. Stefanidis, 10th Dist. Franklin No. 11AP-157, 2011-Ohio-6455, ¶ 12. See also Adomeit v. Baltimore, 39 Ohio App.2d 97, 105 (8th Dist.1974) (“If the material submitted by the movant in support of its motion contains no operative facts or meager and limited facts and conclusions of law, it will not be an abuse of discretion for the trial court to refuse to grant a hearing and overrule the motion“). “Mere general allegations and mere conclusions of law are not sufficient to justify relief from judgment.” Tri-County Pavings, Inc. v. Everman, 12th Fayette Dist. No. CA91-11-024, 1992 WL 126260, *1 (June 8, 1992).
{¶ 23} In the case sub judice, we find no error in the trial court‘s denial of appellants’ motion for relief from judgment. Appellants’ May 17, 2013 motion to vacate does not specifically set forth any operative facts demonstrating that appellants have a meritorious defense to the action. Rather, appellants’ motion focuses on the second requirement of
{¶ 24} Even considering the arguments set forth in appellants’ prior motions to vacate
{¶ 25} Given the forgoing, we find that the trial court did not abuse its discretion in denying appellants’ motion to vacate on the basis that appellants failed to allege operative facts presenting a meritorious defense to appellee‘s claims.
{¶ 26} Moreover, even if appellants had sufficiently set forth operative facts demonstrating a meritorious defense to the action, the denial of their motion to vacate was proper as they failed to demonstrate that they were entitled to relief under one of the five
{¶ 27} Accordingly, we overrule appellants’ first and second assignments of error.
{¶ 28} Judgment affirmed.
RINGLAND, P.J., and M. POWELL, J., concur.